100 Misc. 192 | N.Y. Sup. Ct. | 1917
This action is brought to abate an alleged nuisance and to enjoin the defendant from maintaining its roundhouse and for damages. The plaintiff became the owner of a piece of land in 1894. This land is separated from the defendant’s property by a road fifty or seventy feet wide. In 1908 plaintiff built a small house upon his property about seventy-five feet from the road. In 1901 the defendant’s predecessor built its roundhouse near plaintiff’s property which is still maintained by the defendant. This roundhouse contained originally stalls for seventeen engines, but subsequently a fire occurred and there are now but twelve stalls. The defendant also maintains at the roundhouse four stationary engines and boilers and four smoke stacks, which are level with the road below plaintiff’s house. Prior to the fire the defendant also maintained coal chutes in connection with the roundhouse, but since that time the engines have been coaled with a derrick directly from the cars in front of plaintiff’s property. The defendant. operates cars by electricity from Grand Central Terminal in New York city to North White Plains, and maintains a commutation service between New York city and White Plains with terminal facilities located at North White Plains where is located the roundhouse in question. From North White Plains northward the trains are operated by steam.
Considerable testimony was given concerning the operation of the stationary engines and boilers, the method of kindling fires in the locomotives in the roundhouse and the smoke and soot which came from the smoke stacks of the locomotives and the stationary engines, and it seems to be substantially undisputed that the use by the defendant of its roundhouse, engines and boilers does occasion a considerable amount of smoke and soot which affects plaintiff’s
I have examined with considerable care the very able briefs of counsel, and it seems to me that under the authorities the sole question necessary to be determined in this case is whether the use which defendant makes of its property by maintaining this roundhouse and its appurtenances in the way that it does is by necessity maintained at that particular place and under the authority of the legislature either direct or necessarily implied.
The right of one to use his own property in any way he chooses is qualified by the duty to so use it as not to injure his neighbor. The mere fact that the use is a lawful one is no defense to the maintenance of a nuisance nor does the fact that the use creating the injury is a proper one furnish a legal excuse unless it is expressly authorized by statute. Thus it
In Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, it was held that the maintenance by a railroad company of an engine house and repair shop adjoining a church edifice with the noise and disturbance created thereby, and the smoke, cinders, dust and offensive odors, constituted a nuisance and that the authority given the railroad company to operate its railroad within the city of Washington did not authorize the company to place them wherever it might think them proper in the city without reference to the rights of others. The court said: “ The acts that a legislature may authorize, which, without such authorization, would constitute nuisances, are those which affect public highways or public streams or matters in which the public have an interest and over which the public have control. The legislative authorization exempts only from liability to suits, civil or criminal, at the instance of the State; it does! not affect any claim of a private citizen for damages for any special inconvenience and discomfort not experienced by the public at large.” P. 332.
The court in that case also held that if the annoyances complained of were only those which must necessarily arise from the nature of the business carried on and could not be prevented, then the engine house and repair shops should be removed to some other place where plaintiff would not be thus annoyed.
On the other hand, it seems to be well settled that a railroad corporation performs a public service and is not liable for injuries incidentally occasioned as & consequence of the ordinary careful operation of its
In applying the above rule, the Court of Appeals in that case also held that the habitual and indefinite storing of live stock cars outside its freight yard and near the plaintiff’s residence should be enjoined; that the use by defendant of its through tracks for the purpose of separating and classifying cars intended for its other yards was not reasonably incident to the operation of the yard at the point in question; that the railroad company, having the right, expressly found against the plaintiff, to maintain and operate its freight yard, was justified in any use of its tracks at their junction with said yard which was reasonably incidental to that lawful situation and to the proper maintenance and use of its yard although the method of operation involved accompanying noises; that defendant’s rules, which required outgoing engines to be supplied with enough anthracite coal to carry them some distance beyond the point in question and that the fires on incoming engines should be banked above
It seems to me that it may be fairly gathered from the reasoning of the above authorities that the rule which grants immunity to a railroad corporation from liability for injuries caused by the conduct of its road applies only to the ordinary operation of the railroad itself, and not to the maintenance of roundhouses, turn-tables, power-houses, etc., at particular places. As to such structures and their use, if injurious to adjoining owners, a railroad corporation possesses no greater rights and is subject to the same liability as a private corporation and may not locate them so as to injure the property of others, except by express or implied legislative sanction which must be imperative and not merely permissive.
The defendant contends- that chapter 263 of the Laws of 1831, under which the New York and Harlem Railroad Company (defendant’s predecessor) was organized, and by which “ said corporation is hereby authorized to construct * * * and shall have power to erect and -maintain coal houses and such other buildings * * * as they may deem suitable to their interests,” and that chapter 75 of the Laws of 1849 with reference to said company, which provided “ * * * and also for the purpose of constructing such turnout and branch tracks, station and engine houses, and other equipment, as the exigencies of the business may demand and their charters may authorize and permit,” also expressly sanctioned these acts. It further contends that the act of the legislature directing the elimination of steam engines in New York city and the order of the -public service commission establish
It does not seem to me, however, that the acts of 1831 and 1849 referred to give any greater authority to the defendant than that usually and generally conferred upon railroad corporations by general law. Undoubtedly the maintenance of roundhouses, engine houses, power-houses and like structures somewhere are a necessity to the proper operation of a railroad, and without express language in the statute authorizing their construction such power would be implied as an incident to the general grant, but, as has been pointed out by the above authorities, the mere grant of power to erect and maintain these structures does not authorize their construction and maintenance at such place or in such manner as to injure adjoining landowners. Neither do I think that the act of the legislature eliminating steam engines in New York city, nor the orders of the public service commission above mentioned, require the maintenance of these structures at their present location, nor is there sufficient evidence of the necessity of such location. But if it be assumed that the various acts of the legislature amount to an imperative direction as to such location and the necessity thereof the defendant must nevertheless be held liable.
In Richards v. Washington Terminal Co., 233 U. S. 546, plaintiff was the owner of a lot near the portal of a tunnel in the District of Columbia constructed under the authority of congress. This lot did not immediately adjoin the portal of the tunnel, there being three houses intervening. This tunnel was used in the operation of a railroad and the smoke and gases
The court also said that the acts of congress and the construction of the tunnel thereunder legalized the construction and operation of the railroad so that while properly conducted and erected it could not be deemed a public nuisance; that there was no appropriation of plaintiff’s land and that the act of congress did not provide in terms for the payment of compensation to property owners injured except those whose lands were appropriated, but that the act did authorize the terminal company to acquire by purchase or condemnation “ the lands and property necessary for all and every the purposes contemplated.” The court further said that this legislation must be construed in the light of the Fifth Amendment of the Constitution “ nor shall property be taken for public use, without just compensation,” and said: “We deem the true rule, under the Fifth Amendment as under state constitutions containing a similar prohibition, to be that while the legislature may legalize what otherwise would be a public nuisance, it may not confer immunity from action for a private nuisance of such a character as to amount in effect to a taking of private property for public use.” P. 553.
In commenting upon the case of Baltimore, etc., R.
It seems to me therefore that under the doctrine laid down in the case last cited the legislation upon which the defendant relies constitutes no protection against liability, and that, if it is impossible for the defendant to remove its roundhouse and other structures complained of to a place where they will not injure plaintiff’s property, the right to so injure must be acquired. The only question which remains is the amount of damages to which plaintiff is entitled.
After carefully considering the evidence upon this subject, I conclude that plaintiff is entitled to recover, as past damages, the diminution in rental value arising from the maintenance of the nuisance for six years, which I fix at $360. The plaintiff is also entitled to an injunction restraining the further operation of the roundhouse, stationary engines, etc., in such manner as to result in injury to his property, unless the defendant pay to the plaintiff the permanent injury which his property will sustain by a continuance of the nuisance, and these permanent damages I fix at $500.
A decision and judgment in conformity with this opinion may be settled on notice.
Judgment accordingly.